배당이의
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The purport of the claim and appeal is the purport of the appeal.
1. The reasoning of the court's explanation of this case is that of the first instance judgment, except for the addition of the following determination as to the plaintiff's new argument by this court, and therefore, it is identical to that of the first instance judgment. Thus, it is acceptable to accept this as it is in accordance with the main sentence of
2. Additional determination
A. The auction court preferentially distributed dividends from the auction proceeds of the building of this case owned by the Plaintiff, a debtor, to the mortgagee, and additionally distributed dividends from the auction proceeds of the land of this case owned by the deceased, a surety, to the extent of the shortage.
As to this, the Plaintiff asserted that, on August 23, 2002, the amount of KRW 385,00,000 as the Plaintiff subrogated for the deceased’s obligation and damages for delay calculated at the rate of 5% per annum until January 12, 2017, the date of distribution of the instant auction procedure, should be the right of reimbursement of KRW 662,041,781, which is the date of distribution. Accordingly, it offsets the Plaintiff’s right of reimbursement against the deceased’s right of reimbursement. As such, the instant distribution schedule should be revised as it determines the allocation in proportion to the price of the instant building and land auction in accordance with Article 368(1) of the Civil Act.
However, each statement of Gap evidence Nos. 3 and 6 (including each number) is insufficient to recognize the fact that the plaintiff subrogated for the deceased's obligations, and there is no other evidence to acknowledge it.
B. The Plaintiff asserts that, among the instant land, the ownership of the deceased was acquired upon the lapse of a period exceeding 20 years after the deceased’s share was donated.
However, even if one co-owner occupies the entire land, it is inevitable to regard the co-owner’s share within the scope of the share ratio of other co-owners, barring any special circumstance (see, e.g., Supreme Court Decision 94Da13190, Sept. 9, 194). The Plaintiff donated the deceased’s share among the instant land from the deceased.
There is no evidence to prove that possession has been made by the intention of possession or otherwise.
3. Conclusion.